Ensuring safety compliance in the workplace can sometimes result in disciplinary action against employees who fail to comply with safety requirements. Unfair dismissal cases provide guidance to employers when it comes to the factors to take into account when terminating employment as a result of health and safety breaches.

Cases show that bodies like the Fair Work Commission (FWC) place importance on the seriousness of the safety breach, whether the breach was wilful or careless and whether procedural fairness was afforded to the employee.

Importantly, the cases also show that a safety breach doesn’t necessarily have to be deliberate to justify dismissal, but the employee’s explanation will be a relevant factor to take into account when proceeding with any disciplinary action.

In a recent case[1] concerning the dismissal of a Qantas airline services operator, the FWC found that Qantas validly dismissed the employee following a spate of safety breaches. The FWC found that the employee had received adequate safety training and was aware of the correct safety procedures. Despite this awareness, the employee was found to have deliberately caused a collision between his vehicle and a tug operated by another driver. The employee was not able to provide a plausible explanation for his conduct and the FWC found that his dismissal was justified in circumstances where he had previously been warned about his safety practices and was afforded procedural fairness during the conduct of the investigation into the collision. Qantas dismissed the employee only after it had properly investigated the incident and considered all the evidence including the CCTV footage.

The Qantas case mirrors another recent FWC case[2] where the dismissal of a forklift operator was not found to be harsh, unjust or unreasonable. The forklift driver was dismissed for breaching one of the company’s “Golden Rules” when he continued operating his forklift whilst a person was present in the ‘safety exclusion zone’. The employee had received training and knew about the importance the company placed on safety in the workplace. At the FWC hearing, the company was able to provide corroborated accounts both of the safety incident itself and the investigation. By comparison, the employee did not provide a compelling account of how the safety incident occurred. The FWC noted that the company “set about to create a heightened awareness of safety” and that “a safe workplace requires an employer commitment to introduce and maintain safety standards along with an employee’s capability to assimilate and express in routine actions appropriate safety behaviours”. The FWC confirmed that safety breaches do not have to be deliberate to attract disciplinary action, saying that “[c]onduct that results from carelessness, inattentiveness, deficient concentration in balancing both immediate operational responsibilities and wider situational safety environments, or lack of application of learned rules, are not excuses for non-compliance, but the cause of non-compliance (which in turn give rise to safety risks)”.

The NSW Industrial Relations Commission in a recent case[3] has also acknowledged that “…there are statutory and common law duties to prevent accidents in the workplace and in terms of accident prevention, …[and the employer] must have an ability to remove from the workplace someone who has seriously breached or undermined policies designed to ensure a safe system of work…”. This is a position that has also been echoed in numerous cases from the FWC in recent times[4].

While the nature of the safety breach will be a compelling factor in determining whether termination of employment is an appropriate disciplinary outcome arising from a safety breach, a dismissal may still be unfair if the dismissal process is flawed or the employee’s conduct was not the only cause of the safety breach.

In a recent NSW decision from March 2016[5], a qualified mechanic (who had been employed for 9 years) was summarily dismissed for failing to carry out a vehicle service in accordance with the work order.  While the work order clearly required that the wheel nut tension be checked, the mechanic claimed that he was not required to check the tension of the wheel nuts where the wheels were fitted with retaining clips.  The Applicant claimed that he was not made aware of a Maintenance Alert issued 6 months before the incident requiring the tension of wheel nuts be checked irrespective of whether or not retaining clips were fitted.  The Commission found that the language of the work order was very clear and unambiguous and that the Applicant’s long service and work history put him in a position where he should have known better and been aware that his employer’s “…safety policies are paramount”.

The outcome of the case may have been very different for the employer if it had not been for the clearly worded work instruction.  This is because there was no evidence of the distribution of the maintenance alert or evidence that the mechanic’s supervisor had asked him why he was not completing the work order form properly at any time during the 6 months between the Maintenance Alert and the incident.

In another case[6], a train driver’s dismissal for safety breaches was found to be harsh and he was reinstated to his former position with continuity of employment.  The FWC found that 2 of the 3 allegations which formed the basis for the termination of employment were not made out and the termination was found to be harsh unjust and unreasonable.  The FWC found that while an allegation of speeding was proven, the allegations relating to leaving the co-driver behind and allowing her to smoke on the train were not made out and not valid reasons for dismissal.  The FWC also considered arguments in mitigation and found that the employer did not investigate whether the speeding was a ‘one-off incident’, particularly in light of the employee’s unblemished 9.5 year employment record and the co-driver involved in the incident was treated differently.

In Konya v Transit Australia Pty Ltd t/a Marlin Coast Sunbus, a bus driver was dismissed for serious misconduct[7] after the bus that she was driving in the employer’s yard collided with an awning pole, narrowly avoiding injury to another employee who was standing behind the pole.  The employer claimed that the bus driver was dismissed because she was not paying “due care and attention to driving” by not looking out the front window of the bus and relying on the side mirrors.

Despite the potential for serious consequences, the termination of employment was found to be harsh as the reason for termination was not valid.  The FWC accepted that the employee’s conduct was not the only cause of the risk of serious and potentially life-threatening injury and that a risk assessment of the bus yard would have demonstrated a “high risk of a potential accident given the layout of the yard”. Further, the FWC accepted that the bus driver tried to engage the foot brake and there was no “deliberate failure of procedure that caused the accident” and that the incident did not involve “wilful or deliberate behaviour” by the bus driver.   On this basis, the reasons for the dismissal were found not to be “sound, defensible or well-founded” and the bus driver was ultimately awarded $30,182.36 in compensation (reinstatement was not sought).

Lessons for employers

When considering disciplinary action following a safety breach employers should:

  • Review their safety policies and procedures (and work instructions) to ensure that they can be relied on including considering whether there has been appropriate training on the policies;
  • Consider keeping evidence of the distribution of relevant information to employees;
  • Specifically identify the safety breach;
  • Ensure that there is a connection between the breach and the employee’s conduct; and

Implement a proper dismissal process and apply procedural fairness including by providing the allegations to the employee and seeking their responses before making a decision

[1] Rouady v Qantas Airways Limited [2016] FWC 33

[2] Hanley v Stramit Corporation Pty Limited T/A Stramit Building Products – Rockhampton [2016] FWC 1150

[3] Sunil Dissanayake and State Transit Authority of New South Wales [2016] NSWIRComm 1010 (18 March 2016)

[4] See for example: Parmalat Food Products Pty Ltd v Christopher Tran [2016] FWCFB 1199 at [12]; Hanley v Stramit Corporation Pty Ltd [2016] FWC 1150; White v Asciano Services Pty Ltd t/as Pacific National [2015] FWC 7466 at [225 – 226]

[5] Sunil Dissanayake and State Transit Authority of New South Wales [2016] NSWIRComm 1010 (18 March 2016)

[6] White v Asciano Services Pty Ltd t/as Pacific National [2015] FWC 7466

[7] Konya v Transit Australia Pty Ltd t/a Marlin Coast Sunbus [2015] FWC 4178